38 F. 148 -

38 F1d 148

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Case Text

148

FEDERAL REPORTER, vol. 38.

fend ant cannot be found. In other words, the attachment calls for its predicate the issuance of the warrapt of arrest, and the failure to find the defendant. It may be that the right to issue the attachment depends as much upon the right to issue and the issuance of the warrant of arrest as it depends upon the failure to find the defendant. If this be so, and the warrant of arrest cannot issue, the attachment cannot be used. See Chiesa v. Conover, 36 Fed. Rep. 334. The motion to rescind the warrant of attachment is granted.

THE PIETRO G.1

SCUIAFFINO 11.

Two HUNDRED AND THREE THOUSAND THREE HUNDRED AND NINETy-Two KrLOGRAMMES OF SCRAP-IRON. SCHULZ
'V.

THE PIETRO G.

.aIarch 6, 1889.)

(District Court, 8. D. N6!D York.

.1.

SHIPPING-CARRIAGE OF GOODs-BILr..OF LADING-SHORTAGB.

When the bill of lading states "weight unknown," in the absence of proof 'of the weight shipped on a vessel, other than the recitals of the bill of lading. and a weighmaster's certificate, the vessel cannot be held for shortage. shortage in weifht. but did not keep the lots distinct; and. discharging in the inverse order 0 receiving. delivered first to one consignee his exact weight. leaving a large shortage to fall on the other Beld, that it was the master's duty to have kept the lots separate. or else to take security before delivering the whole weight to the first consignee. that he would make good his proportion of any deficiency in the whole bulk; and that the ship was liable. as for a misdelivery, in delivering to the first consignee more than his proportion of the whole weight shipped.
A vessel shipped two consignments of scrap·iron; the master apprehendedOF MASTER.

S.

SAME-SEPARATE

8.

DEMURRAGE-BILL OF LADING-MISTAKE OF CARGO·OWNER.

A vessel's bill of lading provided that her cargo should be discharged "as fast as the ship could delrver. ", and the cargo· owner fixed too early a day for her arrival at a substituted.p,lace of delivery. whereby the vessel was detained on arriving at the wharf. Held. that the cargo owner was liable for demurrage. ·

In Admiralty. Libel to recover demurrage for detention in discharging scrap-iron. Cross-libel for shortage in the delivery of the iron. Wing, Shoudy &- P1Ltnam, for Schulz. De Ulio, for the Pietro G.
BROWN, J. The Italian bark Pietro G. arrived at this port from Ant· werp on the 23d April, having on board two lots of scrap-iron, one of about 500 tons, and the other of about 200 tOilS, with empty barrels on top. She went to Atlantic Basin to discharge, where the precise

JReported by Edward G. Benedict, Esq., oithe New York bar.

THE PIETRO G.

149

amount of the larger lot of scrap-iron was weighed out and delivered to the consignee of that lot. Schulz & CO., the owners of the smaller lot, had sold their lot to be delivered on cars at the Erie Railroad dock, Jersey City, and therefore made a further contrflct with the bark to go there and deliver it on the cars, which she accordingly did. She reached the wharf on the 16th of May; but, another vessel being at the time unloading at the crane, by which the cargo was usually put into the cars. the bark was unable to commence unloading until the 26th. She claims 10 days' demurrage for this delay. On completing discharge at the Erie dock the last lot was found short 35 tons, 15 cwt., then worth, at the market rate, $751, to recover which the cross-libel was filed. 1. As to shortage. There is no evidence of the weight of either of the lots of scrap-iron loaded at Antwerp, aside from the recitals in the bills of lading, except a weighmaster's certificate, which is not of itself legal evidence. Upon each of the bills of lading the before signing, wrote: "I do not know the weight or quality." In the absence of further proof of the weight put on board at Antwerp, the vessel cannot be held simply for shortage. Eaton v. Neumark, 33 Fed. Rep. 891, and cases there cited; affirmed, 37 Fed. Rep. 375. A further question ansee upon the ship's mode of delivering the cargo, and whether thewhole shortage of 35 tons can be thrown upon the libelant's small lot of 200 tons, delivered last. I think not, under the proofs in this case. The master took no part in the weighing. He had some .doubt as to the amount of the weight received, and for that reason, before signing the bills. of lading, wrote in the precautionary clause. The two bills of lading show shipments by different shippers. Even had the tWQ lots been shipped by the same shipper, it would ordinarily be the master's duty to keep the lots separate, so as to deliver to each consignee his own lot. There is no evidence to show that the shortage occurred in one lot rather than in the other; and it is more probable that the -shortage arose. through .some incorrect mode of weighing, or mistakes in keeping tally, applicable to both lots alike, than that so great an error :should be made in a lot of 200 tons only. Manning v. Hoover, Abb. Adm. 188; The W. A. MorreU, 27 Fed. Rep. 570. With cargoes of scrap-iron, it is said not to be necessary to deliver the identical iron, be.:lause there is no difference in the market value of different lots. The dates of the bills of lading make it probable that the larger lot was delivered first, and put in the bottom of the ship" and the :smaller lot on the top of it, whether both bills of lading were signed after all was loaded, or not. There is no evidence that any separation of the lots was made. Had there been, it could not have failed h> be .discovered on the discharge of the first 500 tons, and would scarcely have failed to be mentioned in the evidence. I But nothing is said about any .:Such separation, and the inference is that none was made. No complaint is, however, made by Schulz & Co. because their iron was to be taken from the bottom, instead of the top. If this, practice as respects ,.scrap-iron has been so far adopted as to constitute an exception to the ;general duty to keep different lots distinct, it certainly not author-

150

FEDERAl, REPORTER,

vol.

38.

ize, in a case of doubt about the weight, the whole shortage to be thrown upon what was discharged last. Under such a practice both consignees would be deemed to consent that the whole be treated as one mass, like grain shipped in bulk; and when there is nothing to show that the shortage arose' in one lot rather than in the other, the equitable rule applies that apportions the loss among the different owners p1'O rata. Story, Bailm. § 40; The Idaho, 93 U. S.·585, 586; Dow8 v. Elr.8trone, 3 Fed. Rep. 19; Rahilly v. Wilson, 3 Dill. 420, 426; Adams Meyers, 1 Sawy. 308. And where the master has reltson to believe that the weight is short of that stated in the bills of lading, it is negligence to keep no separation, to invert the order of delivery, and to deliver the whole exact weight stated in the bill of lading for the first lot, and take no precaution for the last. The same prudence and care that induced the master to insert in the bills of lading the protectivp. clause for his ship, required him to take care that the apprehended shortage, if any, should be properly apportioned. It was not consistent to insert in the bill of lading for the larger lot the statement that he did not know, and in effect, was not responsible for, its weight,and then, on arrival,proceed to weigh out and deliver'to the consignees its exact weight, without taking any securitythatthe consignee's proportion should be returnedoraccounted for iri,case a final shortage was found. Should such security be refused by the first consignee, the master would, I think, not only be justified, but be' bound, to withhold absolnt8idelivery either of the whole lot, or ofa suffichmt amount to cover any apprehended shortage;' As the ship neither kept the lots sepltrate, nor took any precaution towards a right delivery to the libelants of their share of the whole, she should be held liable as for negligence in delivering' to the other consignee an excess over his rightful share, and a deficiency to the libelants. · In effect, it is a cnse ofmisdelivery of a part of the cargo, for which the ship is responsible. Railroad 00. v. Bank, 123 U. 8 Sup. Ct. Rep. 266; The Drew,' 15 Fed. Rep. 829. The whole sbortage, at the,market rates, amounts to $751. The proportion which should have been withheld or charged against the larger lot is $536; and for that sum, with interest, the ship must stand charged in favor of the libelants. '2. Demurrage. The bill of lading for this lot provided that the cargo should be discharged "as fast as the ship could oeliver." . The substituted place of delivery at Erie Railroad wbarf was evidently intended to be subject to the same provision. The mistake on the part of Schulz & Co. was in fixing too eltrly a day for the expected arrival of the bark at the Erie wharf, and for having spt the day, in their arrangement with the proprietors of the dock, without consultation with the master of the bark. The contract admitted by tbepleadingswas that shewas to deliver into the cars, and that could only\be done at the crane. She had no right, therefore, to disciharge elsewhere upon the dock, and had to wait until the 26th. The·idefense set up'in the answer is that proper application was not made by the master to the proprietor of the dock for cnrs; but this'defense iSliot sustained by the evidence. The evidence shows no fault on the ship's part, as respects notice of the de-

KALION CHEMICAL CO. V. THE IROQUOIS.

151

lay, or endeavors to get a speedy berth. Deducting one Sunday, there .remain nine days, for which demurrage should be allowed. If the .amount is not agreed on,it may be ascertained by a reference. The libelants and the cross-libelants are each entitled to decrees .accordingly upon their respective claims.

Owing to a quarrel between the master of a ca;nal·boat and stevedores em· ployed on a ship, caused by the improper of iron ore into the c.anal· boat from the ship, two days were lost in the discharge of the ore. By tlle lou of this time all the ore could not be forwarded on canal-boats before the canalcJosed, and, this action was brought against the, owner of the vessel by the OWner of the ore to recover the extra freight paid. , Held, that the ship wll.s liable for the misconduct of the stevedore's men, asits agents, in the improper discharge; ,and the libelant was also at fault· through the delay of the boatman; its agent, in securing a proper adjustment 'of the difficulty: that the libelani, 'therefore, should recover half its damage. each side looking for fur· ther indemnity to the respective agents employed.'

In Admiralty. Action against the ship Iroquois for improper discharge of libelant's iron ore, whereby libelant was compelled to pay extra charges. Wm. McMichael, for libelant. Henry D. Hotchkiss, for claimant.
BROW.N:, J;o. Ido not feel warranted in finding any lack of diligence on the part of the shipin the discharge of her cargo up to the 13th of :December, when notice 'was given that a boat should be sent to receive the libelant's ore fromaldng-side. Mr. Laing, on the part of the ship, :understood thaHhe ore was designed to be transported to Philadelphia by way of the Delaware & Raritan-canal, which, accordirigto official notice, was to close at midnight on the 19th December. Proper measures were taken by him for the delivery of the ore in time; and I have no doubt it would have been delivered but for a quarrel that arose between the stevedore's men on the ship and the men on the canal-boat, in respect to the dumping of the ore by letting it fall a considerable distance, so as to endanger the boat. On the arrival of the captain of the boat, about 8 o:clock on the morning of the 14th, when some 5 or 6 tons had been taken on board, he found the boat leaking and injured, through the fall of the ore from the end of the chute, a distance of from 15 to 20 feet. The ore was chrome ore, more or less in lumps, some of which weighed 50 pounds each. Such a mode of loading the canal-boat
1 Repol'ted